Joseph
Perry ("Perry") appeals from a jury conviction for
possession of a controlled substance and his subsequent
sentence to eight years imprisonment. Perry argues that the
trial court erred in overruling his motion to suppress
methamphetamine found as a result of an encounter with law
enforcement. Perry claims that the evidence should have been
excluded because the encounter constituted a seizure that was
not supported by a reasonable suspicion that Perry was
involved in illegal activity. Perry also argues that the
trial court plainly erred in sentencing him because the trial
court was under a mistaken belief that the appropriate range
of punishment included a minimum term of five years
imprisonment. We reverse.

Factual
and Procedural Background

Officer
Jodi Huber, of the Chillicothe Police Department, was out on
patrol. She purposefully drove past Perry's house on more
than one occasion during her patrol because Officer Huber
believed Perry was selling methamphetamine out of his house.
On one such occasion, Officer Huber saw Perry backing a truck
out of the driveway. Officer Huber checked the vehicle's
registration and identified the truck as belonging to Perry.
Officer Huber began following the vehicle.

Officer
Huber radioed dispatch to check Perry's driving status.
Officer Huber believed Perry might be driving with a
suspended driver's license. Officer Huber held this
belief because of a conversation she had with another
officer, Officer Maples, about two weeks prior. Officer Huber
and Officer Maples were discussing people in the area with
suspended driver's licenses, and Officer Maples mentioned
Perry.

Dispatch
located several people with Perry's name and asked
Officer Huber for a date of birth in order to check the
driving status for the right person. Officer Huber suggested
that Perry might have been born in the 1970's. Officer
Huber continued to follow Perry for two to four minutes while
waiting for confirmation about his driving status. Officer
Huber still had not received confirmation about Perry's
driving status when Perry parked his car in his
fiancé's driveway. Officer Huber decided to make
contact with Perry anyway. She stopped her vehicle in the
street near the end of the driveway and "jumped
out." [S.H. Tr. 44] She approached Perry as he stood on
private property within a few feet of his vehicle. [S.H. Tr.
27]

As
Officer Huber approached Perry, she said: "[Perry], do
you have a valid driver's license? I believe you're
suspended." [SH Tr. 27][1] Perry responded that he was not
suspended. Officer Huber said: "Well do you have your
driver's license on you and can I see it?" [SH Tr.
27] Perry complied with Officer Huber's request, and
handed over his driver's license. Officer Huber testified
that her intent in making contact with Perry was to make him
"show me his license since I still had not heard back
from dispatch." [SH Tr. 45] Officer Huber testified that
the only reason she "came into contact with [Perry was]
because [she] believed he was suspended." [SH Tr. 49]
When asked to confirm that "Perry wasn't getting
away, " Officer Huber responded that she "was going
to make contact with [Perry] . . . to show me his license
since I still had not heard back from dispatch." [S.H.
Tr. 44-45]

Officer
Huber testified that "someone producing a valid license
[would not] end [her] inquiry into suspicion." [SH Tr.
28] Instead, Officer Huber testified that she would still
need to "run a check to make sure that it's
valid." [SH Tr. 28] With Perry's driver's
license in hand, Officer Huber attempted to make contact with
dispatch to determine whether the license was valid. Officer
Huber's attempts were unsuccessful because, according to
Officer Huber, she was unaware her vehicle's radio was
not set properly to permit the transmission.

While
Officer Huber was attempting to contact dispatch to confirm
Perry's driving status, Perry turned away from her and
put his hand in his pocket. He pulled out what appeared to
Officer Huber to be a plastic bag and held the bag in a
clenched fist. Officer Huber could see a small corner of the
bag. Officer Huber asked Perry to come over to her. Perry
ignored Officer Huber's request and focused on removing a
bicycle from his truck and pushing it along the driveway. He
maintained a clenched fist. Officer Huber followed Perry
along the driveway and around to the front of his truck.
Officer Huber again asked Perry to come over to her. Perry
ran away.

Officer
Huber pursued Perry on foot. Perry came to a chain-link
fence. He hesitated at a fence post for a moment and then
jumped over the fence. His hands were open once he was over
the fence, and he began to walk. By this point, Sheriff Steve
Cox had arrived on the scene. Perry surrendered himself to
Sheriff Cox. During a subsequent search of the area, another
officer found a plastic bag in the hollow top of the fence
post where Perry hesitated. It was later determined that the
bag contained methamphetamine.

Perry
was charged with possession of a controlled substance with
intent to distribute under section 195.211, [2] which is a class
B felony. It was later determined that Perry's
driver's license was not suspended. [SH Tr. 39]

Prior
to trial, Perry moved for suppression of the methamphetamine.
The State argued that Perry had no standing to assert a
Fourth Amendment violation because the methamphetamine was
found in a fence post on property Perry did not own, and that
as a result, the Fourth Amendment was not implicated. [SH Tr.
60] In the alternative, the State argued that at the moment
Perry was arrested, there was probable cause to do so. The
State argued that the initial investigation of Perry's
driving status was a consensual encounter outside the realm
of the Fourth Amendment, and that no seizure occurred until
"the end of the contact, after [Perry is] running with
drugs." [SH Tr. 61] Perry responded that Officer
Huber's initial encounter with him to check his
driver's license was a seizure that required reasonable
suspicion based on specific and articulable facts that Perry
was involved in criminal activity, and that in the absence of
that, the drugs located during the course of the unlawful
seizure were subject to suppression. [SH Tr. 62-63] The trial
court overruled the motion to suppress without explaining its
rationale.

Perry
preserved his suppression argument by objecting to the
admission of the drug evidence at trial and in his motion for
judgment of acquittal or new trial. During trial, there was
no appreciable difference in Officer Huber's testimony
from that given during the suppression hearing.

A jury
found Perry guilty of the lesser included offense of
possession of a controlled substance pursuant to section
195.202, a class C felony. The trial court found Perry to be
a prior and persistent offender under section 558.016.

Perry's
conviction of a class C felony subjected him to a maximum
sentence of seven years imprisonment and a minimum sentence
of zero years. Section 558.011. However, as a prior and
persistent offender under section 558.016, the authorized
maximum sentence for Perry's class C felony increased to
any sentence authorized for a class B felony. Section
558.016.7(3). A class B felony carries a minimum sentence of
five years imprisonment. Section 558.011.1(2).

When
discussing the appropriate range of punishment at Perry's
sentencing hearing, the trial court, given Perry's status
as a prior and persistent offender, stated that the
applicable sentencing range was between five and fifteen
years' imprisonment, enhancing both the minimum and the
maximum class C felony sentence. The trial court asked
defense counsel whether that range was appropriate, and
defense counsel agreed. The trial court then sentenced Perry
to eight years imprisonment.

This
timely appeal followed.

Analysis

Perry
argues two points on appeal. His first point argues that the
trial court erred in overruling his motion to suppress
evidence obtained as a result of his encounter with Officer
Huber. Perry claims that the encounter was an unlawful
seizure made without reasonable suspicion. Perry's second
point argues that the trial court plainly erred by sentencing
Perry under a materially false belief about the possible
range of punishment.[3]

Point
One

Perry
claims that the methamphetamine obtained as a result of his
encounter with Officer Huber should have been suppressed and
not admitted at trial over his objection because the
encounter violated the Fourth Amendment to the United States
Constitution and article I, section 15 of the Missouri
Constitution.[4]

At a
hearing on a motion to suppress, the State must prove that
the motion should be overruled by a preponderance of the
evidence. State v. Grayson, 336 S.W.3d 138');">336 S.W.3d 138, 142 (Mo.
banc 2011). "[T]he State bears both the burden of
producing evidence and the risk of nonpersuasion" that,
based on the evidence it produces, the motion should be
overruled. Id. (quoting State v. Franklin,
841 S.W.2d 639, 644 (Mo. banc 1992)). "When reviewing a
trial court's overruling of a motion to suppress, this
Court considers the evidence presented at both the
suppression hearing and at trial to determine whether
sufficient evidence exists in the record to support the trial
court's ruling." State v. Pike, 162 S.W.3d
464, 472 (Mo. banc 2005). "The Court defers to the trial
court's determination of credibility and factual
findings, inquiring only 'whether the decision is
supported by substantial evidence, and it will be reversed
only if clearly erroneous.'" State v. Goff,
129 S.W.3d 857, 862 (Mo. banc 2004) (quoting State v.
Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003)).
"Whether conduct violates the Fourth Amendment is a
question of law, which is reviewed de novo."
State v. Hillman, 417 S.W.3d 239, 246 (Mo. banc
2013).

The
State contends on appeal that Perry's motion to suppress
was properly overruled for two reasons. First, the State
contends that Perry does not have standing to assert a
constitutional violation because the methamphetamine was
abandoned in the fence post on property Perry did not own.
Second, the State contends that the drugs were found during a
lawful Terry[5] stop because "there were specific and
articulable facts which created a reasonable suspicion that
[Perry] had committed a crime: specifically, driving with a
suspended license, as well as possible distribution of
methamphetamine." [Respondent's Brief, p. 19] For
ease of discussion, we address these arguments in reverse
order.

Perry
was Seized Unlawfully in Violation of His Fourth Amendment
Rights and the Trial Court Erred in Admitting at Trial
Evidence Derived from that Seizure

A
seizure occurs when "the totality of the circumstances
surrounding the incident indicates that a reasonable person
would have believed that he was not free to leave."
Grayson, 336 S.W.3d at 143 (quoting State v.
Sund, 215 S.W.3d 719, 723 (Mo. banc 2007)). Perry argues
that he was seized by this definition when Officer Huber
stopped her vehicle after following him for several minutes
and asked him for his driver's license, expressing
suspicion that he was driving suspended. During the
suppression hearing, the State argued that this initial
encounter was not a seizure, and was instead a consensual
encounter that falls outside the realm of the Fourth
Amendment seizure. On appeal, the State has abandoned this
argument.[6] The State now concedes that the initial
encounter between Officer Huber and Perry was a
Terry stop which was subject to the Fourth
Amendment. However, the State argues that the Terry
stop was lawful because it was supported by reasonable
suspicion.

A
police officer may make an investigatory stop of a person, in
the absence of probable cause, when the officer has
reasonable suspicion to believe that a person is engaging in
criminal activity. Terry v. Ohio, 392 U.S. 1, 30
(1968). As the State now concedes, the evidence offered
during the suppression hearing plainly established that
Officer Huber made an investigatory Terry stop of
Perry. Officer Huber testified that her intent in making
contact with Perry was to make him show her his license
because she believed he was driving with a suspended license.
Officer Huber testified that this was the only reason she
"came in contact with [Perry]." [SH Tr. 49] Officer
Huber reported her suspicion of criminal activity to Perry
immediately after getting out of her patrol car to approach
him. Though Perry denied his license was suspended, Officer
Huber nonetheless requested the license, and Perry complied.
Officer Huber testified that Perry's production on her
request of a seemingly valid driver's license did not end
her suspicion, but required her to run the driver's
license to determine its validity. In short, Officer Huber
stopped Perry to investigate whether Perry was driving with a
suspended driver's license.

Given
the totality of these circumstances, which included the fact
that Officer Huber had been following Perry for two to four
minutes, a reasonable person would not have felt free to
leave after Officer Huber pulled up to their parked car, told
them of a suspected suspended license, and asked for a valid
driver's license to prove otherwise. See United
States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.
1997) (where vehicle followed by police car pulled over
independently and officer asked for driver's license and
registration, driver was seized when officer "obtained
and failed to return his driver's license and
registration, and proceeded with an investigation"). The
plurality opinion in Florida v.Royer is
also insightful on this point:

"Asking for and examining Royer's ticket and his
driver's license were no doubt permissible in themselves,
but when the officers identified themselves as narcotics
agents, told Royer that he was suspected of transporting
narcotics, and asked him to accompany them to the police
room, while retaining his ticket and driver's license and
without indicating in any way that he was free to depart,
Royer was effectively seized for the purposes of the Fourth
Amendment."

460 U.S. 491, 501 (1983). Four members of the United States
Supreme Court held that the circumstances "surely amount
to a show of official authority such that 'a reasonable
person would have believed he was not free to
leave.'" Id. at 502 (quoting United
States v.Mendenhall, 446 U.S. 544, 554
(1980)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Similarly,
we conclude that a reasonable person would not have believed
that he or she was free to leave where Officer Huber was
obviously identifiable as a police officer; had followed
Perry in her patrol car for several minutes for several
blocks, while Perry&#39;s vehicle made several turns, and
even stopped so a passenger could exit; stopped her car in a
lane of travel at the end of a private driveway immediately
after Perry turned and parked in that driveway; jumped out of
her patrol car and approached Perry on private property
immediately after he exited his vehicle; announced to Perry
that she wanted to talk to him because he was suspected of
driving with a suspended license; asked him to produce his
driver&#39;s license in order to quell her suspicion even
though Perry told her he was not suspended; kept the license
while attempting to verify Perry&#39;s driving status; and
testified that her intent in making contact with Perry was to
resolve one way or the other her suspicion that he was
driving suspended.[7]See State v. Gabbert, 213 S.W.3d
713, 719 (Mo. App. W.D. 2007) (finding that "[t]he
totality of circumstances indicates that [defendant] was
seized because he voluntarily submitted to [the
officer&#39;s] authority" where use of language
indicated request of suspect was mandatory); see also
United States v. Villa-Gonzalez, 623 F.3d 526, 533 (8th
Cir. 2010) ("Without his identification card, a
reasonable person is much less likely to believe he can
simply terminate a ...

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